Default
judgment was entered against the remaining Defendant BSI
Financial Services, Inc. (“Defendant”) in this
Fair Credit Reporting Act (“FCRA”) case. (Dkt.
38). After a briefing order, the Court must decide whether
damages in this case should be determined by the Court or by
a jury. (Dkt. 53). The parties were unable to reach an
agreement on the issue; Plaintiff desires a jury trial, while
Defendant believes one is not available. (Dkts. 57, 58).

Under
Federal Rule of Civil Procedure 38(a), the “right to a
jury trial as declared by the Seventh Amendment to the
Constitution-or as provided by a federal statute-is preserved
to the parties inviolate.”[1] On the other hand, Rule
55(b)(2)(B) states that, in finalizing a default judgment,
“the court may conduct hearings or make
referrals-preserving any federal statutory right to a jury
trial-when, to enter or effectuate judgment, it needs to . .
. determine the amount of damages.”

I.
PLAINTIFF'S POSITION

Plaintiff
argues that Rule 55(b)(2) must be read not in isolation, but
in conjunction with Rule 38's declaration that the right
to a jury trial is “inviolate” and withdrawn only
on the parties' consent. He contends that “it is
the better practice, if not actually compelled, that the
issue as to damages be submitted to the jury” after a
default. Barber v. Turberville, 218 F.2d 34, 37
& n.1 (D.C. Cir. 1954). Plaintiff also relies on a
handful of district court cases. See Mitchell v. Bd. of
Cty. Comm'rs of Cty. of Santa Fe, No. CIV 05-1155
JBALM, 2007 WL 2219420, at *13 (D.N.M. May 9, 2007) (holding
that Rule 38(d) prevented plaintiff from unilaterally
“withdrawing” jury demand after obtaining default
against non-appearing defendant); Abernathy v. Church of
God, No. 4:11-CV-2761-VEH, 2013 WL 2248286, at *1 (N.D.
Ala. May 22, 2013) (“better practice” to empanel
jury in light of Rule 38(d)); Zero Down Supply Chain
Sols., Inc. v. Glob. Transp. Sols., Inc., 282 F.R.D.
604, 606 (D. Utah 2012); Ault v. Baker, No.
4:12-CV-00228-KGB, 2013 WL 1247647, at *10-11 (E.D. Ark. Mar.
27, 2013).[2]

As an
alternative argument, Plaintiff submits that the Court may
permit a jury even if one is not allowed as of right.
See Wright & Miller, 10A Fed. Prac. &
Proc. Civ. § 2688 (4th ed.) (Westlaw); Gill v.
Stolow, 18 F.R.D. 508, 510 (S.D.N.Y. 1955) (stating it
is “no doubt within [court's] discretion to order a
jury trial” after default), rev'd on other
grounds, 240 F.2d 669 (2d Cir. 1957). He argues that
valuing emotional harm damages like those he intends to prove
is especially proper for a jury determination. (Dkt. 57 at
7-8).

Moreover,
Defendant argues that the statutory right to a jury trial
survives default only if the statute expressly preserves it
in that situation, and the sole statute to do so is not
applicable here. See Shepherd v. Am. Broad. Companies,
Inc., 862 F.Supp. 486, 492 (D.D.C.) (observing paucity
of such statutes), vacated on other grounds, 62 F.3d
1469 (D.C. Cir. 1995). Defendant cites several district court
cases which have thus determined FCRA damages after entry of
default. (See dkt. 58 at 6). Defendant also contends
that Rule 38(d), which prohibits a unilateral withdraw of a
jury demand, does not apply in this situation because there
is no withdraw of the demand at all; instead, a jury trial is
simply not available by law. (Id. at 7-8). Finally,
Defendant urges the Court not to refer damages to a jury.

As for
any statutory right that Rule 38(a) might protect, Plaintiff
has identified neither a provision of the FCRA that
guarantees a jury trial nor a case so holding. True, he
points to several cases in which a jury ultimately decided
FRCA claims. (Dkt. 57 at 4 n.3, 10 n.4). But those cases
involved a full trial on the merits (not default), and thus
were premised on a Seventh Amendment (not statutory) right,
which as discussed is no longer guaranteed.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Further,
even if the FCRA generally granted the right to a jury trial,
that would not guarantee a jury after default. &ldquo;Despite
the reference to a &lsquo;federal statutory right to a jury
trial, &#39; courts have interpreted the language of Rule 55
as preserving a right to a jury trial only in the atypical
situation where a statute specifically preserves the jury
trial right even after a default.&rdquo; Manno v.
Tennessee Prod. Ctr., Inc., 657 F.Supp.2d 425, 429-30
(S.D.N.Y. 2009). That is, the statute must protect the right
in the specific context of default; the only statute to do
so-28 U.S.C. &sect; 1874-is not implicated here. See
Sells v. Berry, 24 F. App&#39;x 568, 572 (7th Cir.
2001); Meyers v. Lakeland Supply, Inc., 133
F.Supp.2d 1118, 1119 (E.D. Wis. 2001) (holding that, even
where statute provided general jury trial right, it failed to
provide one in case of default); Benz, 164 F.R.D. at
115-16 (protection in Rule 55(b)(2) only &ldquo;applies to
statutes requiring jury trials specifically after default has
occurred&rdquo;); Shepherd, 862 F.Supp. at 492 n.4;
Offei v. Omar, No. 11 CIV. 4283 ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.